Appeal No.2001-1258 Page 11
Application No. 08/413,805
“Obviousness does not require absolute predictability of success. . . . For
obviousness under § 103, all that is required is a reasonable expectation of
success.” In re O’Farrell, 853 F.2d 894, 903-04, 7 USPQ2d 1673, 1681 (Fed.
Cir. 1988). In this case, we find that the references would have provided the
required reasonable expectation of success.
Finally, Appellants argue that the references do not suggest the
composition of claim 4. (See the Appeal Brief, pages 7-8). Appellants argue that
“Szala and Bumol teach the use of antibodies for the treatment of carcinomas.
These teachings are not applicable to the present invention, which recite[s]
pharmaceutical compositions containing the immunogenic polypeptide
GA733-2E.” Page 7. Appellants argue that “faced with the teaching of
administration of antibodies (i.e., passive immunotherapy), one of skill in the art
would not have been motivated to prepare a pharmaceutical composition
containing an immunogenic polypeptide (i.e., active immunotherapy).” Page 8.
This argument is also not persuasive. Claim 4 is directed to a
“pharmaceutically acceptable composition” that comprises a “pharmaceutically
effective amount” of truncated GA733-2 and a “pharmaceutically acceptable
carrier.” We agree with the examiner that this claim language reads on a
composition containing the GA733-2 variant suggested by the cited references,
and a carrier such as water, to be administered to an animal in order to raise
antibodies against GA733-2.
Appellants seem to interpret the claim language to require a composition
that is administered to a patient for treatment (e.g., of cancer), but nothing in the
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